For months, the National Labor Relations Board has said that complaining about one’s job via social media is considered “protected speech.”
But employees do more than grouse about working conditions, overbearing supervisors, and company policies when they’re surfing the web. Sometimes, they merely talk about their jobs. Sometimes, they “like” political candidates on Facebook. And sometimes, they get fired for what seems to be relatively innocuous activity online.
Case in point: Gene Morphis, the former Chief Financial Officer of clothing retailer Francesca’s, who lost his job because he tweeted about his work and his company. From law firm Looper Reed:
“It was not clear in the article if [Morphis] had a contract. It does appear, however, he was not engaging in protected activity. Instead the company claimed in a release the CFO was terminated because he ‘improperly communicated company information through social media…’
Francesca’s, a women’s clothing and accessory retailer, is a publicly-traded company which means the CFO does not have free reign to say whatever he wants.”
Bobby Bland and Debra Woodward, on the other hand, didn’t post details of their jobs online. Instead, they “liked” a Facebook page.
The page belonged to a candidate for the job of Sheriff in Hampton, Virginia. Unfortunately for Bland and Woodward, the candidate was running against their boss, Sheriff B.J. Roberts. When Roberts won the election, he fired the six people on his staff who supported his opponent, who responded by taking Roberts to court over the dismissals. Law firm Cullen & Dykman:
“Six Virginia Sheriff’s office employees sued the Sheriff of Hampton, B.J. Roberts, both individually and in his official capacity, after they were fired from their jobs in 2009… The employees, some civilians and sworn deputies, alleged First Amendment violations claiming that [their] terminations were linked to the expressions made on Facebook, in violation of their freedom of speech and freedom of association.”
The court ruled otherwise. From Lawyers.com:
“The main question was whether a ‘like’ on Facebook constituted free speech under the Constitution. Granting Roberts a motion for summary judgment, the court said no. Perhaps if they had actually written a comment they could have kept their jobs. The judge ruled, ‘No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page.’”
It remains to be seen if these recent events will have a lasting effect on employee use of social media. But one thing is clear: sometimes it might be better to keep your mouse shut.
Read the updates:
• Houston CFO Fired for Social Media Activity (Looper Reed & McGraw, P.C.)
• Facebook “Likes” Are Not Protected Speech Under the First Amendment (Cullen and Dykman LLP)
• You Can Be Fired for a Facebook “Like” (Lawyers.com)
• Dealership Update - May 2012: A Supervisor’s Guide to Social Media, Part One (Fisher & Phillips LLP)
• Reviewing an Applicant’s Social Media Site: Legal Right or Picking a Fight? (Miller Canfield)
Find more information on social media and the law here»